Allen v. FCI Berlin, Warden

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Shawn Allen
v. Case No. 1:23-cv-121-SE-AJ
Warden, FCI Berlin
REPORT AND RECOMMENDATION
Shawn Allen, a prisoner previously incarcerated at the
Federal Correctional Institution in Berlin, New Hampshire (“FCI
Berlin”),1 filed a petition for writ of habeas corpus pursuant to
28 U.S.C. § 2241 (Doc. No. 1). Mr. Allen challenges the Bureau
of Prisons’ (“BOP”) determination that he is presently
ineligible for the application of First Step Act (“FSA”) time
credits. Before the court is the Respondent Warden’s motion for
summary judgment (Doc. No. 6). Mr. Allen objects (Doc. No. 8).
Because no genuine dispute of material fact exists on the issue
of Mr. Allen’s ineligibility for the application of FSA time
credits, the district judge should grant the Warden’s motion.
Summary Judgment Standard
“A district court ruling upon a petition for the writ of
habeas corpus may hear motions for summary judgment, as in civil
1 Pursuant to the Warden’s status report (Doc. No. 9), Mr.
Allen is presently at a Residential Reentry Center in Maryland.
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litigation.” Whitaker v. Meachum, 123 F.3d 714, 716 (2d Cir.
1997). Summary judgment is appropriate when the moving party
shows that “there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a). A “material fact” is one that has
the “potential to affect the outcome of the suit.” Cherkaoui v.
City of Quincy, 877 F.3d 14, 23 (1st Cir. 2017) (citation and
internal quotation marks omitted). A “genuine dispute” exists
if a jury could resolve the disputed fact in the nonmovant’s
favor. Ellis v. Fidelity Mgmt. Tr. Co., 883 F.3d 1, 7 (1st Cir.
2018).
Background
Mr. Allen is serving a 66-month sentence imposed by the
United States District Court for the District of Maryland for
Conspiracy to Interfere with Commerce by Robbery in violation of
18 U.S.C. § 1951(a). See Decl. of Maury Yeakel, Feb. 27, 2023,
(“Yeakel Decl.”) (Doc. No. 11-1, ¶ 5). Mr. Allen’s current
projected release date via good conduct time is March 14, 2024.
Id.
I. FSA Time Credits
As of February 11, 2023, Mr. Allen has earned up to 390
days of FSA time credits, which have not been applied to affect
his date of release or placement in prerelease custody (a
halfway house or home confinement). Id. ¶ 7. When time credits
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earned for certain risk-reducing activities or programs are
applied to an eligible prisoner’s sentence under the FSA, the
credits may advance the date when the prisoner is released to
begin his or her term of supervised release, or those credits
may effectively reduce the prisoner’s time of incarceration by
allowing the prisoner to be placed in a halfway house or home
confinement earlier.
II. Risk of Recidivism
Under the FSA, the BOP assesses each prisoner’s risk of re-
offending upon release, by applying an algorithm that generates
a “PATTERN” score. Walsh v. Boncher, No. 22-cv-11197-DLC, 2023
U.S. Dist. LEXIS 10812, at *2 n.1, 2023 WL 363591, at *1 n.1 (D.
Mass. Jan. 23, 2023). PATTERN is an acronym for “Prisoner
Assessment Tool Targeting Estimated Risk and Needs.” A PATTERN
score measures the prisoner’s “‘criminal risk factors . . . to
predict the likelihood that a person in federal prison will re-
offend upon release.’” Id., 2023 U.S. Dist. LEXIS 10812, at *2,
2023 WL 363591, at *1 (citation omitted). “The four PATTERN
risk scores are minimum, low, medium, and high-risk.” Id.
On December 19, 2019, Mr. Allen’s PATTERN score, or risk of
recidivism, was assessed as high. Yeakel Decl.(Doc. No. 11-1, ¶
6). His PATTERN score was reduced to medium on April 28, 2021.
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Id. Currently, Mr. Allen’s PATTERN risk score is medium2 and has
been medium in his most recent risk assessments. Id. According
to the Warden, Mr. Allen has never received a minimum or low
PATTERN risk score, id. ¶ 9, and Mr. Allen provides no evidence
to the contrary. Further, it is undisputed that Mr. Allen has a
prison disciplinary record that includes a finding of guilty as
to one high and one moderate severity disciplinary offenses
within the last three years. Id.; see also BOP Inmate
Disciplinary Record (Doc. No. 6-1, at 12-13).
In his § 2241 petition, Mr. Allen acknowledges his medium
PATTERN risk scores; nevertheless, he asserts that based on
congressional intent, he is entitled to the application of his
earned FSA time credits to his sentence.
Discussion
The Warden moves for summary judgment on all of Mr. Allen’s
claims and asserts that the BOP’s pertinent actions and sentence
calculations are consistent with the FSA’s requirements.3
2 Pursuant to this court’s June 12, 2023 order, which
directed the parties to file updated information regarding the
BOP’s assessment of Mr. Allen’s FSA recidivism risk level, the
Warden filed a status report (Doc. No. 9), which indicates that
Mr. Allen’s risk assessment score remains medium.
3 The Warden also argues that he is entitled to summary
judgment because Mr. Allen failed to exhaust his administrative
remedies. Where Mr. Allen’s petition fails on the merits, the
court need not address whether Mr. Allen failed to exhaust his
administrative remedies. See Gonzalez-Garcia v. FCI Berlin,
Warden, No. 23-cv-0091-SM, 2023 U.S. Dist. LEXIS 68862, at
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Specifically, given the results of Mr. Allen’s recent recidivism
risk assessments and his disciplinary history, the Warden
asserts that Mr. Allen is ineligible for the application of FSA
time credits. In response, Mr. Allen contends that the Warden
is misinterpreting congressional intent behind the FSA and that
his earned time credits should have been applied to his
sentence.
The FSA generally renders a person ineligible for early
transfer to supervised release if his or her risk of recidivism,
as reflected in his or her most recent PATTERN score, is medium
or high, and similarly precludes early placement in prerelease
custody if his or her two most recent PATTERN scores are medium
or high, unless the Warden has approved the person’s petition
for transfer to prerelease custody or supervised release. See
18 U.S.C. § 3624(g)(1)(D)(i)-(ii); see also Goodman v. Sage, No.
4:22-CV-00981, 2022 U.S. Dist. LEXIS 233946, at *4, 2022 WL
18028148, at *2 (M.D. Pa. Dec. 30, 2022).
There is no suggestion here that the petitioner has
obtained the Warden’s approval of a transfer petition, or that
his most recent PATTERN score is minimum or low. Rather, the
undisputed facts demonstrate that Mr. Allen’s current PATTERN
score and two most recent PATTERN scores have been medium.
*4, 2023 WL 3020872, at *2 (D.N.H. Apr. 20, 2023).
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Further, as of February 27, 2023, the Warden has not exercised
his discretion to allow Mr. Allen to be transferred to
prerelease custody given Mr. Allen’s disciplinary record that
includes one high and one moderate severity disciplinary
offenses within the last three years. Yeakel Decl.(Doc. No. 11-
1, ¶ 9); see also BOP Inmate Disciplinary Record (Doc. No. 6-1,
at 12-13). Accordingly, the undisputed facts demonstrate that
Mr. Allen is ineligible for the application of FSA time credits
to his sentence, and therefore, the Warden is entitled to
judgment as a matter of law.
Conclusion
For the foregoing reasons, the district judge should grant
the Warden’s motion for summary judgment (Doc. No. 6) and direct
the clerk to enter judgment and close this case. Any objections
to this Report and Recommendation must be filed within fourteen
days of receipt of this notice. See Fed. R. Civ. P. 72(b)(2).
The fourteen-day period may be extended upon motion. Only those
issues raised in the objection(s) to this Report and
Recommendation are subject to review in the district court.
See Sch. Union No. 37 v. United Nat'l Ins. Co., 617 F.3d 554,
564 (1st Cir. 2010). Any issues not preserved by such
objection(s) are precluded on appeal. See id. Failure to file
specific written objections to the Report and Recommendation
within the specified time waives the right to appeal the
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district court’s order. See Santos-Santos v. Torres-Centeno,
842 F.3d 163, 168 (1st Cir. 2016).
__________________________
Andrea K. Johnstone
United States Magistrate Judge
September 5, 2023
cc: Shawn Allen, pro se
Seth R. Aframe, Esq.
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